Scalia draws rebukes for comments about black students

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Detroit Legal News

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Conservative justice has history of making remarks in blunt terms

By Sam HananelAssociated Press

WASHINGTON (AP) - Supreme Court Justice Antonin Scalia, famous for his blustery rhetoric from the bench and beyond, finds himself in controversy again after suggesting that some black students might belong at "slower-track" universities.

His remarks last week during court arguments over an affirmative action program at the University of Texas have drawn rebukes from civil rights leaders, top Democrats and even the White House. And they returned a familiar spotlight to the feisty justice who doesn't shy away from calling it as he sees it on issues like race and gay marriage.

Scalia has a long history of making remarks in blunt terms without seeming to care about offending those in his sights, reflecting the sensibilities of a staunch conservative born in the 1930s who came of age as the civil rights movement was beginning.

Senate Democratic leader Harry Reid denounced Scalia on Thursday for uttering what he called "racist ideas" from the bench.

"The idea that African-American students are somehow inherently intellectually inferior from other students is despicable," Reid said on the Senate floor. "It's a throwback ... to a time that America left behind a half a century ago."

White House spokesman Josh Earnest said the comments stand in "quite stark contrast" to the priorities and values President Barack Obama has advocated through his career. Civil rights activist Al Sharpton, who attended the arguments, said he didn't know "if I was in the courtroom at the United States Supreme Court or at a Donald Trump rally."

Wednesday's arguments were about whether the University of Texas has compelling reasons to consider race among other factors when it evaluates applicants for about a quarter of its freshman class.

Gregory Garre, the university's lawyer, told Scalia that minority students admitted through the affirmative action program fared better over time than those admitted from the top 10 percent of all schools.

Scalia prefaced his comments by noting that one of the briefs in the case "pointed out that most of the black scientists in this country don't come from schools like the University of Texas."

"They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them," Scalia said. "I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some - you know, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less."

In his comments Scalia was referring to a legal brief from affirmative action opponents on research showing that minority students admitted to competitive universities through affirmative action can often struggle to succeed if they don't have top academic abilities. This "mismatch" theory holds that minorities would be better off at less academically rigorous schools.

The theory has been around for more than a decade and Scalia is not alone in embracing it. Justice Clarence Thomas, who is black, shared similar views in a 2003 case in which he said minority students admitted to the University of Michigan were unprepared for the work they faced.

"I just think he's a pull-no-punches kind of guy," said Paul Cassell, a University of Utah law professor and former Scalia clerk who also served as a federal judge.

"He's also got a very sharp mind and he has less patience with arguments that don't quite come to grips with the tough issues," Cassell said. "Political correctness can obscure correct answers in legal cases and block discussion of the hard questions."

Being at the heart of controversy is familiar territory for the outspoken jurist. Last month, Scalia drew criticism for remarks to a group of Georgetown University law students in which he suggested the push to protect certain minority groups under the Constitution could just as easily apply to child molesters.

"It's up to me to decide deserving minorities?" Scalia asked. "What about pederasts? What about child abusers? So should I on the Supreme Court (say) this is a deserving minority? Nobody loves them."

In a 2013 argument over a Michigan voter referendum that would prevent the use of race in college admissions, Scalia said the 14th Amendment "protects all races," not "only the blacks."

In arguments earlier this week over how Arizona's state legislative districts were redrawn, Scalia questioned whether it was possible to select a member for an impartial commission who is "lily-white pure," using a phrase that recalls an anti-black political movement from the early 1900s.

And in his dissent in the court's 2013 ruling on same-sex marriage, Scalia railed about an earlier decision striking down anti-sodomy laws in Texas

"When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with whether the government must give formal recognition to any relationship that homosexual persons seek to enter," Scalia said.